Crimes against humanity in the name of scientific advancement: Handling cases of gross medical misconduct through mechanisms of transitional justice
Abstract
Numerous events of the 20th century have set the precedent that medical misconduct on a large scale can be considered and prosecuted as both a war crime and a crime against humanity. And while directly classified as a war crime and indirectly classified as a crime against humanity in the Rome Statute, I argue that medical misconduct is not treated with the same level of attention and concern as other crimes of a similarly serious nature, such as rape and genocide. I also argue that while this is presently the case, it ought not to be; medical misconduct is a heinous crime that can lead to a slippery slope of ethical dilemmas, and must be explicitly and directly condemned and dealt with by the international community. In this paper, I will discuss historical examples of large-scale medical misconduct and will analyze how these situations were handled by the international community. Using this information, I will illustrate the need for a more deliberate focus on handling and preventing such situations, and will outline some key factors that will significantly contribute to making the first steps towards this change.
Keywords: biological warfare, medical misconduct, Nuremberg Code, scientific literacy
Introduction
When discussing war crimes and crimes against humanity, it is natural to think of crimes like rape, genocide, and mass kidnappings, which have been the focus of the international community for decades. Current institutions of transitional justice have been designed to identify, handle, and prevent such crimes, and academic writing in the field tends to focus on how these crimes are, can, and should be addressed. But a commonly neglected topic is that of medical misconduct, which takes a backseat in discussions of transitional justice. This stems from a clear lack of scientific literacy among transitional justice experts and an inadequate level of interdisciplinary communication and cooperation between specialists in the medical and transitional justice fields. As a result, current institutions and mechanisms of transitional justice are not properly equipped to handle the unique challenges that cases of large-scale medical misconduct present. Just as certain mechanisms of transitional justice are designed to handle instances of genocide, rape, etc., I argue that there must be similar methods of identifying, addressing, and preventing cases of large-scale medical misconduct, and believe that increased scientific literacy and a greater understanding of bioethics are paramount to making this change.
Medical misconduct & ethics
The phrase “medical misconduct” can have slightly different meanings depending on the situation in which it is used. It is often more generally understood in a domestic legal context, as many countries have laws pertaining to cases of medical malpractice and misconduct against individuals. In the context of this paper, however, I will be referring to medical misconduct that takes place on a large-scale, international basis. Therefore, it can be defined as unethical acts of medical or scientific experimentation carried out on a large-scale or international level that causes bodily harm or death to unconsenting individuals. Simply put, the phrase “medical misconduct” as it is used in this paper is defined by four characteristics: 1) it affects a large group of people, not just one individual; 2) the medical procedures, treatments, and/or experimentation used are neither ethically nor medically justified; 3) those affected cannot or do not consent to such medical procedures, treatments, and/or experimentation; and 4) the medical procedures, treatments, and/or experimentation cause bodily harm or death in those affected.
Tangential to this understanding of medical misconduct is biological warfare, which can be defined as the use of biological agents (such as bacteria, viruses, fungi, insects, etc.) to cause harm or death to a large group of people, often simultaneously and indiscriminately. What distinguishes medical misconduct from biological warfare is the element of experimentation, which is absent from biological warfare. Medical misconduct, although necessarily causing harm to those affected, is done in the name of scientific research. This distinction is part of the reason why medical misconduct is not as readily and universally condemned by society, and therefore why actors in the field of transitional justice need to more firmly and directly address such cases.
An example of such an ethical dilemma occurring as a result of medical misconduct (although occurring on a domestic scale) is the genetic experiments conducted by Jiankui He, who used CRISPR/Cas9 gene editing technology to intentionally alter the genetic code of human embryos. The three children born as a result of his experiments––as well as their parents, who were not adequately informed about what these experiments entailed––were unable to consent to these procedures, and must now live their entire lives with the potentially deleterious side effects of He’s actions (Cruickshank, 2019). And while Jiankui He is now widely condemned in the scientific community, his work is still cited as promising evidence that CRISPR/Cas9 gene editing might eventually be used to cure fatal genetic diseases and defects. Despite the egregious ethical violations that He committed during the course of these experiments, the fact that his research was done in the name of scientific progress has led some to praise the importance of his discoveries. Although this particular example of medical misconduct does not fully align with the definition stated above, it does highlight an interesting dilemma that many cases of medical misconduct raise: At what point, if ever, do the potential benefits of such experimentation outweigh the ethical violations that are committed?
Such questions do not arise with other acts of violence. There is no aspect of rape, torture, murder, or biological warfare that can be excused as being done in the name of scientific or medical advancement. In no way can these crimes ever be done in the name of the greater good of humanity. But with acts of medical misconduct, the distinction between right and wrong can become murkier, and as a result, the unwavering condemnation of such crimes is more infrequent.
Medical misconduct as a crime against humanity
The Rome Statute states that:
[s]ubjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons
is a war crime when carried out in a time of either national or international conflict (Rome Statute, 1998). Interestingly, however, is the omission of medical misconduct from the same document’s classification of crimes against humanity. The Rome Statute does state that “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” are considered crimes against humanity, and medical misconduct certainly falls into that category (Rome Statute, 1998). But the omission of a direct description of medical misconduct––similar to that included within the list of war crimes––from the Rome Statute’s list of crimes against humanity is concerning.
Undoubtedly, most cases of medical misconduct have occurred during times of war, but this is not universally the case. Therefore, a more explicit condemnation of medical misconduct as a crime against humanity, and not just as a war crime, is necessary. Although the two scenarios are not fully comparable, the fact remains that whether medical experiments are conducted on people during a period of war or on people during a period of peace, those responsible for such experimentation are guilty of heinously unethical criminal acts. To explicitly condemn one and not the other is a flagrant oversight on the part of transitional justice experts and institutions.
Medical misconduct throughout history
But aside from classifying medical misconduct as a war crime and crime against humanity, how can we identify it? What does it look like when removed from the world of hypotheticals and placed into a real-world context? How has it historically been dealt with, and how can it be handled and prevented on a forward-thinking basis? To answer these questions, we can turn to historical examples of medical misconduct.
One of the most prominent examples of medical misconduct in history occurred in Germany during WWII, where Nazi doctors and scientists conducted human experiments on Jewish people held in concentration camps. Details of these horrifying experiments were released after the war ended, and numerous documents provided evidence that Nazi doctors and scientists subjected prisoners of war to experiments involving extremely high-altitude conditions, freezing ice water, mustard gas, seawater ingestion, bone transplantation, sterilization, poison, incendiary bombs, typhus, and a number of other viral agents. These experiments left unconsenting victims physically disfigured and disabled, and, when they actually survived, mentally and emotionally scarred for life (Marks, 2004).
It is no surprise that individuals responsible for these atrocious acts were put on trial less than two months after the Major War Criminals’ Trial concluded in October of 1946. The Doctors Trial, which lasted from December of 1946 through August of 1947 and convicted a total of 23 Nazi doctors and scientists, occurred at a time when the international community was desperate to achieve some sort of justice for the unspeakable crimes that had been committed by Nazis during the war, the likes of which people had never before seen (Nuremberg Trials, 2021). During this time, the desire for retributive justice was high, and perpetrators of medical misconduct were not exempt from these sentiments. Additionally, the scale and severity of human experimentation in Nazi Germany was extreme to the highest degree. Although it is unknown exactly how many people fell victim to Nazi doctors and scientists, the opening statement by the prosecution at the Doctors Trial numbers their victims in the hundreds of thousands (The Doctors Trial, 2021). The scale and severity of these crimes likewise contributed to the perpetrators being held accountable.
The conditions surrounding the Doctors Trial in Nuremberg were unlike any that the world has since experienced. The astronomical scale and severity of the medical war crimes committed in Nazi Germany, combined with the nearly universal desire for retributive justice for crimes committed during WWII, created a scenario in which the conviction of those involved was practically guaranteed. But are these the conditions that are necessary to prosecute perpetrators of medical misconduct? They certainly shouldn’t be. And yet, the Doctors Trial appears to be the only significant and successful trial in which those responsible for human experimentation received punishment––16 receiving life in prison and seven receiving the death penalty––for their crimes. Even the case of the Mochtar Affair, which occurred during WWII in 1945, did not receive the same level of attention from the international community despite occurring during that period of time in which retributive justice was being served as readily as the legal system might allow. Done for allegedly experimental purposes, the Japanese Imperial Army administered vaccines intentionally tainted with tetanus to 900 Indonesian prisoners, killing every single one (Baird, 2016). And although this case is undoubtedly horrific, the 900 victims of the Mochtar Affair pale in comparison to the hundreds of thousands that fell prey to Nazi doctors. As a result, perpetrators of the Mochtar Affair were untouched by the legal system, and their victims were forgotten.
A hopeful individual might suppose that the lack of prosecution against perpetrators of medical misconduct is indicative of a corresponding lack of wrongdoers. Unfortunately, this is not the case. There are numerous documented cases of medical misconduct from all around the world, some of which far predate WWII. But in the context of transitional justice, I believe it important to focus on cases of medical misconduct that occurred after WWII for two important reasons. First, events occurring during or after the 20th century align fairly closely to our present-day understanding of bioethics. Second, all examples of medical misconduct that occurred after WWII––specifically, after the Doctors Trial––happened after the creation of the Nuremberg Code. The Nuremberg Code is a document designed to clarify the ethics regarding medical experimentation, particularly as it pertains to human experimentation, and outlines the parameters within which limited human experiments can take place, with a distinct focus on the protection of the health and safety of those who voluntarily consent to participating in these studies (Shuster, 1997). Before the creation of the Nuremberg Code, instances of ethical violations within science and medicine were readily overlooked, likely due to their noble purpose of allegedly improving the human condition. But once the Doctors Trials roused international actors to the realization that medical misconduct could be––and, indeed, already was––running rampant within the scientific community and destroying the lives of hundreds of thousands of innocent people, stricter legal guidelines were placed around human experimentation.
The most prominent example of medical misconduct following WWII occurred in the United States, and took place over the course of nearly four decades. Known as the Tuskegee Syphilis Study, this set of human experiments was run on the predominantly African American community of Macon County, Alabama and aimed to study the incidence of syphilis in the area. Participants were never fully informed about the nature of the study and were never offered treatment for the disease, despite a safe and reliable cure being discovered in 1943. What is so astounding about this case is the degree to which it was publicly known and supported in the medical community. The experimental method of the Tuskegee Syphilis Study was by no means kept quiet, and numerous medical experts were consulted throughout the 1930’s, 40’s, 50’s, and 60’s and were asked for advice and assistance. Only in 1965, 33 years after the study began, did Dr. Irwin Schatz express his concerns regarding the ethics of the experiments––the first medical professional to formally do so since the study began in 1932. The following year, a venereal disease investigator for the United States Public Health Service (PHS) by the name of Peter Buxtin likewise began to question the ethics of the Tuskegee Syphilis Study, and, nearly a decade later, finally left the PHS. It was at that point that Buxtin contacted popular media sources with information regarding the experiments, which ended shortly thereafter in 1973 due to public outrage (Pritchard and Goldfarb, 2000).
This case is, in equal parts, both fascinating and deeply disturbing for the same reasons. First, the formative years of the Tuskegee Syphilis Study took place during a period of time that was defined by the advanced protection of human rights and bioethics in the scientific and medical communities. And yet, this study was still conducted quite publicly for nearly four decades under the express consent and direction of the PHS. What is more, it took more than three decades for anyone to formally express any concern regarding the ethics of the study, despite bioethics being the central focus of the international scientific community. Finally, and perhaps most disturbing of all, is the fact that public outrage––not discontent from the scientific community, not express condemnation from abroad, and certain not legal intervention––was the demise of the Tuskegee Syphilis Study.
This case highlights several important points. First, it shows that even the advent of international laws designed to protect bioethics was not enough to encourage individuals to speak out against such flagrant ethical violations, let alone to prevent such heinous acts from being committed in the first place. Second, it highlights the need to not only condemn medical misconduct as a war crime, but also as a crime against humanity. Although prosecuting citizens, entities, and institutions of the United States for war crimes or crimes against humanity is exceptionally difficult due the United States’ refusal to join the International Criminal Court and its dominant role in the United Nations, the international community has a responsibility to condemn actions that explicitly violate the Rome Statute, regardless of its power to convict the perpetrators. By neglecting to explicitly define medical misconduct as a crime against humanity and allowing instances of unquestionable medical misconduct to publicly occur without any express condemnation, the international community and institutions of transitional justice are allowing the general sentiment that medical misconduct is not the serious and inhumane crime that it actually is to fester and grow on both the domestic and international level.
And while the focus of this paper is on cases of medical misconduct that occur during or after WWII and the conception of the Nuremberg Code, it is also worth noting that cases of medical misconduct have been documented for centuries. Well-known doctors and scientists such as Edward Jenner, Sir James Young Simpson, and Louis Pasteur all practiced astoundingly unethical medical experiments throughout the 18th and 19th centuries (Marks, 2004). Although, interestingly, the questionable ethics that they employed are not disparaged nearly as frequently as their discoveries are celebrated. This again elucidates the need to condemn instances of medical misconduct in a direct and explicit manner, lest they be continued in the name of scientific research and the greater good of humanity. And, as the above examples illustrate, while there is historical and legal precedent for the prosecution of medical misconduct, in practice, these cases are overwhelmingly overlooked by the international community.
Medical misconduct in transitional justice
As I have hopefully illustrated, there is a dire need for change in the way that institutions of transitional justice and the wider international community treat cases of medical misconduct. The fact that, out of countless examples, only one case of medical misconduct has ever been addressed by the international community is as mind-boggling as it is contemptible.
But the solution is not as easy as simply encouraging institutions of transitional justice to pay closer attention to cases of medical misconduct and to actually intervene when possible; these institutions are likely as unprepared as they seem to be unwilling to address cases of medical misconduct. Although there have been instances of doctors and scientists being prosecuted for medical misconduct, there is little focus on this crime within institutions of transitional justice. Accordingly, there is a distinct lack of complex and rigorous mechanisms of transitional justice that are properly equipped to deal with cases of medical misconduct as war crimes or crimes against humanity.
And while such mechanisms are obviously necessary, they cannot be developed hastily. It has already been observed that current mechanisms of transitional justice are remarkably limited, and the “catch-all” approach that institutions of transitional justice take towards the situations that they interfere in can sometimes do more harm than good (Nesiah, 2020). And while it is realistically impossible to design mechanisms of transitional justice that are tailor-made to every unique situation, it cannot be denied that the distinct nature of certain crimes requires a more specialized approach to be handled. I argue that medical misconduct is perhaps one of the most unique crimes in this sense. Its tendency to be committed in the name of scientific advancement, its ability to create ethical arguments that do not arise with other crimes of a similarly serious nature, and its scientific/medical component––which does not fall under the expertise of most transitional justice experts––sets it apart from other war crimes and crimes against humanity in a way that would make it difficult to handle using only current mechanisms of transitional justice. Therefore, to hastily implement new and/or improved mechanisms of transitional justice that are designed to handle cases of medical misconduct would inherently ignore the depth and intricacies of such a uniquely complex crime.
Ultimately, the first step towards improving and perhaps even creating institutions and mechanisms of transitional justice that are properly equipped to handle cases of medical misconduct involves improving the scientific literacy of members of the transitional justice community.
Scientific literacy
Scientific literacy can be generally understood as the knowledge of science, engaging in its investigative nature, using science as a way of knowing, and understanding the reciprocal interaction of science and society. When frequently exercised and properly honed, scientific literacy extends beyond daily experiences and popular media, and allows an individual to engage with more complex aspects of the scientific community––namely, to read, critically evaluate, and understand academic scientific writing (Dani, 2016). This is by no means an easy skill to develop, and an even harder one to master due to two specific factors that seem to define the world of scientific research.
First, there is little incentive within academic science to freely share information or research, because the goal of conducting such research––which is often the product of years’ worth of work and millions of dollars of funding––is to have it published. Only novel research is published, which leads to many scientists heavily protecting their work. After undergoing a rigorous review process, research that is deemed original, accurate, and substantially supported by data can finally be published and is only then available to the general public. But herein lies the second issue: accessibility. Scientific publications are difficult to find unless using a specialized search tool (such as Google Scholar), and when finally discovered, are often protected by some sort of paywall that requires a hefty amount of money to even rent an article for 24 hours of access. Additionally, academic writing of all kinds is dense, complex, and difficult to read. It is not made to be consumed by the general public or by those with only a basic understanding of the topic; it is written by and for the specialists and experts within whatever field the research pertains to. So really, it is little surprise to find that all academic fields of study––from medicine to transitional justice, and everything in between––are exceptionally isolated from one another. There is little crossover between different areas of research, especially when those areas of research fall into two completely separate fields of study.
But as the concept of scientific literacy implies, science and society are not separate from one another. And as we see in the case of medical misconduct, they can be tightly intertwined in such a way that it is difficult to find experts who are equipped to deal with both aspects of the situation. But that is no excuse not to address it.
Setting aside the general need for better interdisciplinary communication among different fields of research, the transitional justice community more specifically needs individuals who are better prepared to cross the academic gap between science and the humanities, who have enough scientific literacy to understand and evaluate scientific information and research as it pertains to society, and who understand the importance of this multidisciplinary communication and cooperation. And, accordingly, there needs to be more members of the scientific community who do the same. I believe that with this increased scientific literacy would naturally come a better understanding of how to define, recognize, and deal with crimes that involve an integral scientific component, such as medical misconduct. Without it, the transitional justice community will continue to focus on other war crimes and crimes against humanity, and the victims of medical misconduct will continue to fall to the sidelines.
Conclusion
There is no lack of evidence to support the claim that medical misconduct as I have defined it can and should be considered both a war crime and a crime against humanity. There are even historical cases in which medical misconduct is tried and prosecuted as such. And while current international legal documents show that medical misconduct is technically considered both, there is a distinct lack of focus on medical misconduct in both institutions of transitional justice and scholarly research and literature in the field. This level of oversight highlights an issue that plagues all academic fields: a significant, if not complete, lack of communication and cooperation among different disciplines.
Medical misconduct is a crime similarly serious to crimes such as rape and genocide, and ought to be perceived and treated as such––not just on paper, but also in practice. Institutions of transitional justice need to make a concerted effort to address cases of medical misconduct, and to develop mechanisms that allow them to properly do so. But such changes cannot and should not be made hastily. First, there must be a significant increase in scientific literacy and the understanding of bioethics within the transitional justice community, so that any institutional and legal changes made are done by informed individuals who have a comprehensive understanding of both the scientific and social aspects of medical misconduct.
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